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tv   [untitled]    September 23, 2012 4:00pm-4:30pm PDT

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procedure than is typically occurs at the board. it would be a shorter presentation that would provide for the board what we did, timeline on which we did it, to the extent necessary what evidence we considered and then to the extent necessary summarize the findings that are already in this document. i am hoping that that is actually redundant, since they have the document and the transcript. which is why it didn't seem it would be a conflict. i hear your objection and i'm certainly sensitive to not only sort of potential -- actual conflict, but potential conflict as well. so mr. hemblig, let me put you on the spot, do you have a viewpoint in light of mr. wagner's comments? >> i think mr. wagner raises a good point, mainly on a perception issue. what i believe the board is seeking and what i felt i could do
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without putting myself in a conflict situation is simply report to the board what this commission did and what findings it made. essentially reiterating the written document. the board wants someone there to be able to make that presentation and answer questions. i don't think there is an ideal solution to who that right person should be. if it were the chair, it would be awkward, because the chair is the one dissenter from the decision. if it one member of four-person majority, that would be awkward, because that person may be asked questions to speak for the entire majority and not feel comfortable doing that. if it were me, there is some awkwardness with the legal advice that i might be called upon to present to the board and what i hope to be a very dry and neutral presentation of what the findings are here. but it puts me in some of the
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an awkward situation, so i don't disagree with mr. wagner, but it may be the best of the alternatives to have me do it given my neutral position. but i'm open to whatever the commission would like. >> mr. wagner? >> i think mr. hemblig said it well in pointing out that it raises a perception issue. the question is -- >> so are you advocating then that rather than mr. emblig, who will give a neutral, as he put it "dry presentation," you would want someone from the majority to go there and make the presentation? is that what you are suggesting? >> no. >> who do you think should do it? >> well, we objected to any one from the commission. >> well, if we're going to send someone, mr. wagner, so if you object to mr. emblig. >> i don't think it's fair, respectfully commissioner to
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put it back on us who is the best person to advocate your position to the board in the process? >> we're giving you an opportunity to weigh in on how we should present this to the board. if you are going to object to mr. emblig and have no other suggestion, that is fine. but i'm giving you that opportunity and if you decline it, that is fine. >> then i would respectfully suspect that the director, mr. sancroix explain the procedures and the commission's position to the board. ultimately as mr. emblig said, there is a perception issue and the ethics commission, i believe should take every action that it possibly can to avoid the perception of impropriety and to avoid the appearance of conflict. so that is why i raised the issue and i think that the director making the presentation would alleviate that concern, because the director is not counsel for
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the commission or the board. >> i am a little confused as to why the board can't have other counsel. >> i have no objection to the board retaining other counsel. >> i didn't realize that your engagement at the present time that you engaged by the board, have you been advising the board during our proceedings? >> yes. and there has been one meeting about procedure with the board. one public meeting. >> i apologize, commissioners, were you waiting? did you have a question or just a general pause? >> i guess i am a little
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surprised and i don't know why the board doesn't have independent counsel. >> i can't answer that question. i am doing this pro bono. >> i know that and we're very appreciative of all of the help you have given us and i am just a little surprised that that it wouldn't be obvious to the board that there is to a certain extent a conflict between you advising us and they as the decision-makers. because we're not the decision-makers, we just make the recommendation, but be that as it may, i would suggest that the solution is for the board to get counsel, find another pro bono. >> i would just also add respectfully commissioners and with all due respect to mr. emblig, it's my understanding that mr. emblig was retained by
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the city attorney's office of the city and county of san francisco. mr. emblig's firm hass a client the city and county of san francisco and that is further reason why we believe that the board should have independent and different counsel. >> one thing i'm sure we can't decide is who the board's lawyer should be. okay? so i don't want to hear anything about who the board's lawyer should be. i can't weigh in on this or make any decision about that. none of us can here. what we're trying to determine is who should make the presence to presentation to the board? you object to mr. emblig, because maybe you are alleging actual conflict of interest. is there anything else you want to say about that, whether or not mr. emblig should give the presentation? >> no thank you. >> anything else, mr. wagner? >> as to the issues that have been addressed so far?
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no, thank you. >> would the city attorney have any view point on who should make the presentation to the board? >> obviously that is for the commission to decide. we believe that there would be no actual conflict if mr. emblig gave the presentation. we do understand the sheriff's concern about perceived conflict. this was an issue that came up in superior court and one way we dealt with it was, in fact, having the city attorney withdraw from its usual representation of the council and board and this is not because of any unfairness of the party. normally our office would be advising and acting in many different capacitis in this city procedure. we are the city's lawyers in many capacities. so it would be here on behalf of the mayor. we would be normally advising
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your commission as you are familiar in other matters. we would normally be advising the board. those are our standard roles. and there is nothing wrong in any way with us having all of those different roles simultaneously. >> i don't want to hear about that. >> our understanding of mr. emblig in this matter, we have no official position. we think it's permissible to have mr. emblig present the commission's viewpoint. my view is that the safer, more conservative route would be to have someone other than mr. emblig do it, but we don't believe there is an actual conflict if he does. >> okay. thank you. mr. emblig? >> i just want to make one clarification for the record. i was not retained by the city attorney's office. i have two retention agreements, one with the ethics
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commission, one with the board of supervisors, both agreements were approved in public sessions by the respective commission and the board. both agreements did point out that i would be advising both the commission and the board. so this is not something new. this has been out there since the very beginning, even before the beginning of these proceedings. >> my concern with mr. sancroix doing the presentation is that he wasn't here for a lot of the hearings. he has many responsibilities, and in light of all of the resources devoted to this effort, could not attend every session. nor do i think he has really been reviewing the transcripts. so while in most cases, i think he is by far the best person to present these kinds of things to the board, i don't think this is one of
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those situations. i think the alternative to mr. emblig would be a member of the commission. i welcome the views of our commissioners. >> i for one have no objection to you being the spokesperson even though you dissented to the result. it's laid out why you dissented. but the question that might be asked by the board, i have perfect confidence that will you make a fair presentation of what took place. >> other views of commissioners? >> i echo commissioner renne's view. i think would make a fine presentation and i this you have presented both sides very fairly. >> i have full confidence in
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you, commissioner hur. look, you have done really a magnificent job of creating the process and running these hearings. and i don't think that any one of us really has the intimate knowledge of the page by page transcript of all of the questions of all of the issues that have come up more than you. and yes, you casted the dissenting vote. i am not sure what the hearing will be like before the board of supervisors, but i don't know, but i would think that those of us who can be in attendance, should there be questions. i don't have any lack of ability in your confidence. you may not want to is a whole other issue. you may not want to.
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[ laughter ] >> no comment. do the parties have any objection if it were to be me? >> thank you, commissioners for considering the issue. i completely agree with commissioner hayon and believe that commission hur has done a magnificent job with these proceedings and would do an outstanding job before the board. >> it doesn't leave very much room to say much. >> the mayor has no objection. >> okay. i'm willing to do it. it is awkward, given that i was in the dissenting view, but i will do my best. so before we vote on the order and how it's presented, can we please take
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public comment? on this issue. >> good afternoon, chair hur, and commissions. i am patrick chong here's a private citizen and hearing that debate about who should make the presentation was shocking. the ethics commissioner has an ethnic responsibility as an independent watchdog to make the presentation yourself and not put it onto somebody else. i draw your attention to larry bush' city article at the great dissent, hur says no. in its drive to reach the desired conclusion the ethics
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commission summary rewrites rather than reports even misstating with the claims that the commission voted to find mickami guilty of misconduct on two of the six charges and that of course, mr. bush wrote is not what happened. the commission dropped four immediately on the grounds that they were unproven and debated how to handle the two remaining charges. they did not sustain the mayor's charges. you all know that. and only one of you had the ethical wherewithal to vote no as did commissioner hur. commissioner hur stated, "if we do not find a nexus to the relationship of the duties, then we are opening this
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provision up to abuse and manipulation down the road in a way that we, we the voters, commissioner hur are really not going to like. you stated mr. hur you do not think it's is your job to determine mr. mirkarimi's level of efficacy going forward. you implored your fellow commissions to make a narrow and principal view of that clause that will enable those using it going forward to apply it in a consistent way. your report as written is not what you said on august 16th it would be. you have completely changed this draft summary into something that you did not set out to do, but you did it any
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way. much like you have done an injustice to this whole process. thank you. >> hi, my name is sue grisom and if you are concerned about perceptions of inpropriety, i get comments saying give sheriff ross mirkarimi my regards. he got a raw deal. i went to a lower haight merchants association fair on monday and every merchant commented on how much they love
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ross mirkarimi and his family and everyone of them said they believe he is getting a raw deal. there is a widespread perception of inproprietary in this case. i believe it should be delayed until after the election. this has been a political campaign and there has been a lot of misconduct to go around. i believe that the domestic violence advocates themselves are engaging in illegal conduct when they come and testify here. they are 501(c)(3) tax exempt organization and to give them tax exempt status they should not be advocating for or against any candidate for public office and they have had the gall to come here and say
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ross mirkarimi should not be sheriff and i believe is misconduct on their part. i think you should therefore seriously consider delaying deliver your report to the board of supervisors until after the election. thank you. >> my name is barbara tangari and i want to speak to the there is a cultural thing here and what you saw in the video, she was very emotional at that point. and you didn't take it as well, this is actual fact and blah blah. she is latina and i understand, because i happen to be half latina, born in honduras and i
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understand it very well. i hope i am not saying anything that i shouldn't say. what i have heard since day 1, and i have been in this the room, this and the other room, and had a close-up eye view and hearing to the entire proceedings. i have concluded that the charges are less than a misdemeanor. and i think that the board of supervisors, there are about four of them, that are going up for re-election. and avalos, campos, mar and chiu and without being pressured i think that the hearing at the board of supervisors should be delayed until after the election.
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people like malia cohen could possibly vote in favor of mirkarimi, but i would say, because she is not running for re-election. so i should say it should be delayed until after that. so i want to thank you chair. i have admired the way you have conducted the hearings. i think you have done a pretty fair job. i would just like to see a little bit more fairness on the culture of the wife and i wish ross mirkarimi all the best. i hope he gets his job back, the benefits and the back pay and the family coming together. i met the little boy sunday. beautiful. it's a beautiful family. it's not as bad as you think it is and kind of lighten up a little bit.
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let's have this go after the vote, the election. thank you. >> hi. my name is paula canney and i'm not speaking as anything other than me. and i am actually speaking to say i realize how much time each of you has put into this and how difficult it must be. so let me talk a little bet. i have been a criminal defense lawyer for 32 years. that is a long time to do anything. and i was a deputy district attorney in ventura county in this pilot project of domestic violence prosecution, the first one in the state in 1981. i'm not for domestic violence. even though i am a criminal defense lawyer, i am for love. i am for passion.
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i am for forgiveness. i am for the best society that we can possibly have. so i'm saying to you, that i know each of you had this hard decision to make. some of you can't even look at me as i speak, because of the situation that you have been called to do. in domestic violence cases it's really hard to get a conviction in san francisco county. and so the plea bargain that ross took is the plea bargain that allows police officers to keep their jobs. it's not a crime of moral terpitude, and this is that standard thing. it's the plea bargain that is designed for the person to not lose their job it's the plea
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bargain designed so that the breadwinner continues to have employment, health insurance and medical benefits for the family and it's the plea bargain that allows the criminal justice system to allow that person to be rehabilitated and to -- i don't know, be rehabilitated and pace pay their price to society and the like. that is what ross did. i'm not ross' lawyer. i was never ross' lawyer, but we would not have been convicted in a jury trial and instead, to try and save the shame of so much of really what his wife believed was a confidential video so i am saying that we have a decision to make as a society, if you want ># revenge it's never going to be pretty and nothing is going to get better. allowed somebody to continue to do the good work that they do,
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because by all accounts, you saw it. he has worked his whole life as a matter of service to this city. and so if you believe that this act of a low -level misdemeanors warrants a person losing their job, then people are going to lose their jobs. how does that make people any better? i know have i prattled on and not really said what i wanted to say. but i hate where we are ten months later and i hate it. >> i think we understand your sentiment. >> here is the bottom line. >> well, you have passed your time. there will be another public comment, perhaps you would like to make another one at that time. thank you. [ inaudible ] >> i won't comment on that either. is there any motion to approve
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the amended order that the commission has considered? and i think for purposes of clarity, i don't know if we have to read them all, but i think we should at least identify them all. so mr. emblig, would you like to take a shot? >> i will take a shot. so i think it would be to approve the findings of fact and recommendation to the board of supervisors as drafted with the following changes. as to the first you did not specify where you wanted this, so i am winging it. inserting on page 6, before the paragraph beginning, "commissioner hur dissented." insert a sentence that says --
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a stand alone paragraph that says commission hayon supports a finding that the official misconduct in this case, merits the sheriff's removal from office. on page 6, line 6, between the word "officers," at the end of the sentence and the words, "in addition," at the beginning of the next sentence insert two new sentences that is a in that regard the commission did not find credible the version of the incident as described by the sheriff and miss lopez at the hearing. rather the commission finds that the evidence contained in miss lopez' video was more credible. then as to finding 7, on page 5, add a clause at the end after "of his spouse," that says and the court imposed a sentence consistent with the
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march 12, 2012 plea agreement as reflected in paragraph 31 of the amended charges. on page 2, oh, okay. going backwards. i'm sorry. on page 4, line 1, add after the words "except the mayor," add the words, "and san diego chief of police william lansdowne." and finally i believe on page 2, the first sentence should be altered to read, "this matter presents for the first time -- no. this matter presents the first
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time that the ethics commission has provided a recommendation to the board of supervisors regarding charges of official misconduct under charter section 15-105. that is all i have got. >> one thing that we didn't include in there and i want to make sure that the commission is doing this affirmatively and not by omission. what is not included there is a statement adding what facts we found were not proven. while i have no particular objection to including it, i don't think it's necessary, and in my view, things that are not necessary we're better off not including thing that are not necessary. if the commissioners feel strongly, i have no objection to the statement of what facts we found were not proven to be included.
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is there any dissenting view from that? >> no, i agree. >> okay. were there any other changes that we discussed that mr. emblig did not identify? is there a motion to approve the findings of fact and recommendation to the board of supervisors as amended by the language noted by mr. emblig? >> i will so move. >> second. >> all in favor? >> aye. >> opposed? none opposed. the motion passes. the next item on the agenda is minutes of the special meetings of april 23rd, may 29th, june 19th, june 28th,


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